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The constitution protects a suspect from official coercion, but it doesn’t protect a suspect from his mother. The 6th U.S. Circuit Court of Appeals, in a sharply split 8-7 death penalty decision, expands the ability of police to resume questioning suspects after they invoke their right to a lawyer. The majority gives a broad reading of the long-standing U.S. Supreme Court limit on police questioning by allowing relatives or friends to alert police that a suspect wants to restart talks. The decision “does not merely amount to further erosion of Miranda, but the creation of a legal framework that is doomed to breed uncertainty and confusion,” wrote Judge Boyce Martin Jr. in one of three separate dissents from the majority in Van Hook v. Anderson, No. 03-4207. Overstepping ‘Edwards’? Nearly 26 years ago, the U.S. Supreme Court imposed a bright-line rule that once a suspect asks for a lawyer police must stop questioning and cannot resume until the suspect “himself” initiates a discussion. Edwards v. Arizona, 451 U.S. 484 (1981). The object was to prevent police badgering or coercing a suspect in custody. Although the May 24 decision upholding the conviction and sentence in the 1985 murder case of Robert Van Hook does not split with other circuits, the question is whether the 6th Circuit has overstepped Edwards, according to Keith A. Yeazel, the Columbus, Ohio, solo practitioner representing Van Hook. He said he will appeal. “Police can play fast and loose with the rule; that’s why you want a bright line,” said Yeazel. Three other circuits have issued similar rulings, although none was a capital case. The 9th Circuit approved resumed interrogation after a cellmate told officers the suspect wanted to talk. U.S. v. Michaud, 268 F.3d 728 (2001). The 8th Circuit approved questioning after a mother said to police she told her son to “tell the truth.” Owens v. Bowersox, 290 F.3d 960 (2002). And the 11th Circuit approved police questioning after the suspect’s wife indicated his willingness to talk. U.S. v. Gonzalez, 183 F.3d 1315 (1999). If the Supreme Court perceives this as a tactic of police to get around the bright-line rule of Edwards, to use third parties to indicate a desire to talk, the Supreme Court could take up the case, said Rob Owens, co-director of the Capital Punishment Clinic for the University of Texas School of Law in Austin. Judge David McKeague, in his first capital case opinion since joining the court in June 2005, held that if police talk to the suspect’s mother, close friend or sibling, and believe, based on the conversation, that the suspect wants to talk, the police may inquire without violating Edwards. “If we were to prohibit a suspect from initiating a discussion with the police through a third-party, we would be crafting an artificial rule not required by the Constitution, as well as imposing an undue burden on the criminal justice system,” McKeague wrote. The three other circuits upholding third-party initiations as permitted under Edwards “only serves to illustrate the danger of such a rule,” countered Judge R. Guy Cole Jr. in dissent. The majority turns the Edwards rule “on its head” and creates a “glaring asymmetry in the law of custodial interrogations,” Cole said. He pointed out that neither Van Hook’s mother, nor any third party, can invoke a suspect’s right to a lawyer. But this ruling allows a third party to waive that right. “We obviously think the court reached the correct conclusion,” said Elizabeth Scavo, deputy solicitor for the Ohio Attorney General’s Office in Columbus. “The decision brings the 6th Circuit into greater harmony with other circuits.” While the Supreme Court might want to clarify Edwards more, this ruling is not in conflict with Edwards, she said. Van Hook was convicted of the strangulation and stabbing murder of a man he picked up at a gay bar in Cincinnati in 1985. Upon his arrest in Fort Lauderdale, Fla., Van Hook indicated he wanted a lawyer. Before one arrived, an Ohio detective said he talked by phone to Van Hook’s mother and believed that Van Hook wanted to talk. During the resumed questioning, Van Hook confessed to the murder. The third dissenting opinion, by Judge Gilbert S. Merritt, pointed out there was no evidence to suggest that the Ohio detective spoke to Van Hook’s mother prior to his questioning of the suspect, and there was no mention of the call in 776 pages of police records and notes.

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